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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
V

UNPUBLISHED June 19, 2007

SHERMAN ALANDO GRANDBERRY, Defendant-Appellant.

No. 271160 Oakland Circuit Court LC No. 06-207136-FH

Before: Fitzgerald, P.J., and Sawyer and O'Connell, JJ. PER CURIAM. Defendant was convicted, following a jury trial, of second-degree home invasion, MCL 750.110a(3). The trial court sentenced defendant as a fourth habitual offender, MCL 769.12, to 4 to 30 years in prison. Defendant appeals as of right. We affirm. Defendant's sole argument on appeal is that his guidelines scoring of prior record variable (PRV) 5, MCL 777.55, should be reduced from ten to five points. We disagree. Prior record variable 5 concerns earlier misdemeanors, in the form of criminal convictions or juvenile adjudications. Subsection (2)(a) limits misdemeanors or adjudications to be counted to those stemming from offenses against a person or property, concerning controlled substances or weapons, to which subsection (2)(b) adds offenses involving operation of a vehicle under the influence of controlled substances or alcohol. Subsection (1)(c) prescribes that ten points should be scored for three or four such convictions or adjudications, and subsection (1)(d) prescribes that five points should be scored for two such convictions or adjudications. MCL 777.50 prohibits the use of a conviction or adjudication from which the defendant was discharged at least ten years before he or she committed a subsequent offense. Defendant's presentence investigation report (PSIR) identifies a total of 11 prior convictions, of which the trial court apparently regarded three as applicable for purposes of scoring PRV 5. Defendant concedes that the fourth and ninth of the 11 convictions were properly counted, but takes issue with the tenth, on the ground that he was convicted in violation of his right to counsel. Defendant's PSIR in fact indicates that an attorney was present for the conviction in question, but defendant cites various other documents as indicating otherwise. See People v Carpentier, 446 Mich 19, 31; 521 NW2d 195 (1994) (a defendant collaterally challenging a prior -1-


conviction bears the initial burden of establishing that the conviction was obtained without counsel or a proper waiver thereof). The trial court did not feel obliged to determine whether defendant in fact had had the assistance of counsel in the matter, on the ground that because the result was a sentence of probation, with no incarceration, no right to appointed counsel had attached. We agree with the trial court. The federal and state Constitutions guarantee a criminal defendant the right to the assistance of counsel. US Const, Ams VI and XIV; Const 1963, art 1,

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